Citation Nr: 0404440
Decision Date: 02/17/04 Archive Date: 02/27/04
DOCKET NO. 02-20 999 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to an initial evaluation in excess of 20 percent
for the service-connected diabetes mellitus.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M.S. Lane, Counsel
INTRODUCTION
The veteran served on active duty from September 1971 to
August 1973.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a May 2002 rating decision by the RO, which
granted entitlement to service connection for diabetes
mellitus and assigned a 20 percent evaluation, effective on
July 9, 2001. The veteran subsequently perfected an appeal
regarding the disability rating assigned.
In a VA Form 9, Appeal to Board of Veterans' Appeals,
received in November 2002, the veteran indicated that he
wished to appear at a videoconference hearing before a
Veterans Law Judge. However, the veteran subsequently failed
to report for this hearing.
To date, the veteran has not offered an explanation for his
failure to report, nor has he requested the opportunity to
appear for another personal hearing.
FINDING OF FACT
The veteran's service-connected diabetes mellitus is shown to
be productive of a disability picture that more nearly
approximate one that requires insulin, restricted diet and
regulation of activities.
CONCLUSION OF LAW
The criteria for the assignment of an initial 40 percent
rating, but not higher, for the service-connected diabetes
mellitus have been met. 38 U.S.C.A. § 1155, 5107, 7104 (West
2002); 38 C.F.R. §§ 4.7, 4.119 including Diagnostic Code 7913
(2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Preliminary Matters
The Veterans Claims Assistance Act of 2000 (VCAA), Public Law
No. 106-475, 114 Stat. 2096 (2000), substantially amended the
provisions of chapter 51 of title 38 of the United States
Code, concerning the notice and assistance to be afforded to
claimants in substantiating their claims. VCAA § 3(a), 114
Stat. 2096, 2096-97 (2000) (now codified as amended at
38 U.S.C.A. §§ 5103, 5103A (West 2002)).
The Board finds that the RO has satisfied the notification
requirements of the VCAA in his case. By virtue of the
Statement of the Case (SOC), and correspondence from the RO,
the veteran has been given notice of the information and/or
medical evidence necessary to substantiate his claim.
In particular, the Board notes an evidence development
letters dated in April 2002 and May 2002 in which the veteran
was advised of the type of evidence necessary to substantiate
his initial claim for service connection.
The Board also notes an evidence development letter dated in
October 2002 in which the veteran was advised of the type of
evidence necessary to substantiate his claim for an increased
rating.
In these letters, the veteran was also advised of his and
VA's responsibilities under VCAA, including what evidence
should be provided by the veteran and what evidence should be
provided by VA.
It also appears that all obtainable evidence identified by
the veteran relative to his claims has been obtained and
associated with the claims folder, and that he has not
identified any other pertinent evidence, not already of
record, which would need to be obtained for an equitable
disposition of this appeal.
Accordingly, the Board finds that VA has satisfied its duty
to assist the veteran in apprising him as to the evidence
needed, and in obtaining evidence pertaining to his claim,
under both former law and the new VCAA. 38 U.S.C.A.
§ 5107(a) (West 2002); Pub. L. No. 106-475, § 3(a), 114 Stat.
2096, 2096-98 (2000) (now codified as amended at 38 U.S.C.A.
§§ 5103 and 5103A (West 2002)).
II. Entitlement to increased evaluation for diabetes
mellitus
The record reflects that service connection was established
for diabetes mellitus in the May 2002 RO decision.
At that time, a 20 percent evaluation was awarded as of July
9, 2001, which is the effective date of a VA regulation that
added diabetes mellitus to the list of diseases for which
presumptive service connection was warranted based on
herbicide exposure. See 66 Fed. Reg. 23166-23169 (May 8,
2001).
In the May 2002 rating decision, the RO also granted
entitlement to service connection for peripheral neuropathy
of the right and left lower extremities, on the basis that
they developed secondary to his diabetes mellitus, and
assigned a 10 percent evaluation for each extremity.
In addition, the RO granted entitlement to service connection
for erectile dysfunction, on the basis that it developed
secondary to diabetes mellitus, and assigned a non
compensable evaluation. These issues are not presently
before the Board on appeal.
The veteran is now seeking a higher disability rating for his
service-connected diabetes mellitus. The veteran essentially
contends that the impairment caused by his diabetes mellitus
is sufficient to warrant a 40 percent evaluation under the
criteria of Diagnostic Code (DC) 7913.
Disability evaluations are determined by the application of a
schedule of ratings that is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38
C.F.R. § Part 4. Separate diagnostic codes identify the
various disabilities.
The governing regulations provide that the higher of two
evaluations will be assigned if the disability more closely
approximates the criteria for that rating. Otherwise, the
lower rating is assigned. 38 C.F.R. § 4.7 (2003).
The veteran's entire history is reviewed when making
disability evaluations. See generally 38 C.F.R. 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where
entitlement to compensation already has been established and
an increase in the disability rating is at issue, it is the
present level of disability that is of primary concern. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
However, in cases where the original rating assigned is
appealed, consideration must be given to whether a higher
rating is warranted at any point during the pendency of the
claim. Fenderson v. West, 12 Vet. App. 119 (1999).
The veteran's service-connected diabetes mellitus is
currently rated as 20 percent disabling under 38 C.F.R. §
4.119, Diagnostic Code 7913. Under that code, a 20 percent
evaluation is assignable where the diabetes requires insulin
and a restricted diet; or oral hypoglycemic agents and
restricted diet. A 40 percent rating is warranted for
diabetes mellitus requiring insulin, restricted diet, and
regulation of activities.
A 60 percent rating is warranted for diabetes mellitus
requiring insulin, restricted diet, and regulation of
activities with episodes of ketoacidosis or hypoglycemic
reactions requiring one or two hospitalizations per year or
twice a month visits to a diabetic care provider, plus
complications that would not be compensable if separately
evaluated.
A 100 percent disability rating will be assigned when
diabetes mellitus requires more than one daily injection of
insulin, restricted diet, and regulation of activities,
(avoidance of strenuous occupational and recreational
activities) with episodes of ketoacidosis or hypoglycemic
reactions requiring at least three hospitalizations per year
or weekly visits to a diabetic care provider, plus either
progressive loss of weight and strength or complications that
would be compensable if separately evaluated.
The record reflects that, in April 2002, the veteran
underwent a VA examination in which it was noted that the
veteran was insulin-dependent and that he was on a restricted
diet. It was also noted that he was experiencing numbness in
his toes and tingling in his fingers, but that he was
reportedly unaware of any way in which these symptoms were
limiting his day-to-day functioning.
The examiner noted a diagnosis of insulin-dependent diabetes
mellitus, with administration of both insulin and oral
agents; erectile dysfunction; and very mild peripheral
neuropathy in the upper and lower extremities.
Thereafter, in support of his claim, the veteran submitted a
June 2002 letter from a private physician, Dr. M.H., in which
it was noted that the veteran was an insulin-dependent
diabetes and that he was on a restricted diet.
The veteran also submitted a June 2002 letter from his other
private physician, Dr. R.K., in which the physician indicated
that the veteran was taking insulin three times daily, and
that he was on a restricted diet due to dysmetabolic syndrome
and hypertension. The physician also specifically indicated
that the veteran was restricted to light activities only.
In November 2002, the veteran also underwent a VA peripheral
nerve examination in order to evaluate the current severity
of his peripheral neuropathy. He reported experiencing
freezing and burning sensations in his feet, which were
intermittently accompanied by a sensation of "pins and
needles" in his feet. He also reported experiencing a
similar sensation in his hands, as well as numbness and some
difficulty with fine motor skills.
Physical examination at that time was found to be essentially
negative. The examiner noted diagnoses of erectile
dysfunction and peripheral neuropathy.
In light of the foregoing, the Board finds that the veteran's
disability picture more nearly approximates the criteria for
the assignment of a 40 percent evaluation under the criteria
of DC 7913. In essence, the Board concludes that the
veteran's diabetes mellitus has been shown to be manifested
by insulin-dependence, a restricted diet, and regulation of
activities.
The Board recognizes that, during the veteran's April 2002 VA
examination, he reported that he was unaware of any way in
which the numbness and tingling in his extremities had caused
him to limit his activities. However, the veteran appears to
have made this comment solely in regard to the impact of his
peripheral neuropathy.
The Board finds the opinion of Dr. R.K., who has been
treating the veteran for diabetes mellitus since at least
December 1999, to be the most probative evidence of record
regarding the issue of whether the veteran's diabetes
mellitus as a whole requires regulation of activities.
As noted hereinabove, Dr. R.K. specifically indicated in his
June 2002 letter that the veteran was taking insulin three
times a day, that he was on a restricted diet, and that he
was restricted to light activities only.
The Board further concludes, however, that the preponderance
of the credible and probative evidence is against the
assignment of an evaluation in excess of 40 percent under the
criteria of DC 7913.
In this regard, the Board notes that it has reviewed the
veteran's treatment records, as well as the letters from his
treating physicians. However, there is no evidence that the
veteran's diabetes mellitus has been manifested by episodes
of ketoacidosis or hypoglycemic reactions requiring one or
more hospitalizations per year or at least two visits per
month to a diabetic care provider.
The report of the veteran's April 2002 VA examination is also
negative for any such history, as is the report of the VA
peripheral neuropathy examination conducted in November 2002.
As discussed in detail, the medical evidence does reflect
that the veteran's diabetes mellitus has resulted in several
complications, including erectile dysfunction, and peripheral
neuropathy of the left and right lower extremities. The RO
has already awarded service connection for these disabilities
on a secondary basis, and they are not presently before the
Board on appeal.
In addition, the report of the veteran's April 2002 VA
examination also reveals a diagnosis of very mild peripheral
neuropathy in the upper extremity based on the veteran's
complaints of tingling in his fingers. Similarly, during the
November 2002 VA peripheral nerve examination, the veteran
also reported experiencing the sensation of "pins and
needles" in his fingers, and some difficulty with fine motor
movements.
However, under the criteria of DC 7913, an evaluation in
excess of 40 percent is only warranted if such complications
are accompanied by episodes of ketoacidosis or hypoglycemic
reactions requiring one or more hospitalizations per year or
at least two visits a month to a diabetic care provider. As
noted above, such symptomatology has not been demonstrated.
In summary, the Board finds that the veteran's disability
picture more nearly approximates the criteria for a 40
percent evaluation under the criteria of DC 7913. 38 C.F.R.
§ 4.7. To this extent, the benefit sought on appeal is
granted.
In closing, the Board notes that consideration has been given
as to whether the veteran is entitled to a "staged" rating
for his service-connected disorder as prescribed by the Court
in Fenderson. The Board finds, however, that the veteran's
diabetes mellitus meets the criteria for a 40 percent rating
throughout the entire course of this appeal.
ORDER
An initial rating of 40 percent for the service-connected
diabetes mellitus, effective on July 9, 2001 is granted,
subject to the regulations applicable to the payment of
monetary awards.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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